MATUSZAK v. BRANDS INC (2005)

In an action to recover for damage to property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated August 12, 2004, which granted the defendant's motion for summary judgment dismissing the complaint, and denied their cross motion to compel discovery pursuant to CPLR 3212(f).

ORDERED that the order is affirmed, with costs.

 The defendant established its prima facie entitlement to summary judgment by proffering, inter alia, documentary evidence that the subject fire was not caused by its rechargeable First Alert flashlight, but by a clothes dryer.   In opposition, the plaintiffs failed to raise a triable issue of fact.

 Moreover, the plaintiffs certified this matter as trial ready, filed a note of issue, voiced no objection to the manner in which discovery was proceeding, and did not make any application to compel disclosure until they cross-moved in opposition to the defendant's summary judgment motion.   In such instances, the law is well settled that a claim of incomplete discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v. Mohawk Containers Co., 59 N.Y.2d 753, 463 N.Y.S.2d 433, 450 N.E.2d 239;  Kraeling v. Leading Edge Elec., 2 A.D.3d 789, 770 N.Y.S.2d 382;  Federoff v. Camperlengo, 215 A.D.2d 806, 626 N.Y.S.2d 301;  Kracker v. Spartan Chem. Co., 183 A.D.2d 810, 585 N.Y.S.2d 216;  Dabbs v. City of Peekskill, 178 A.D.2d 577, 577 N.Y.S.2d 658;  Hecht v. Vanderbilt Assoc., 141 A.D.2d 696, 529 N.Y.S.2d 818).

The plaintiffs' remaining contentions are without merit.